Citation Nr: 0839317
Decision Date: 11/14/08 Archive Date: 11/20/08
DOCKET NO. 06-21 663A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for a right knee
disorder, secondary to service-connected left knee
disabilities.
2. Entitlement to a rating in excess of 10 percent for
residuals of a left knee injury.
3. Entitlement to an initial rating in excess of 10 percent
for left knee arthritis.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
B.B. Ogilvie, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1966 to March
1968.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2005 rating decision by the
St. Petersburg, Florida, Regional Office (RO) of the
Department of Veterans Affairs (VA), which denied the claims
sought.
In July 2007, the veteran testified at a personal hearing
before the undersigned Veterans Law Judge. A copy of the
transcript of that hearing is of record.
The above claims were remanded in February 2008 for further
development and consideration. They are again before the
Board for appellate review.
FINDINGS OF FACT
1. There is no competent evidence that a right knee
disability is etiologically related to the service-connected
left knee disabilities.
2. Residuals of a left knee injury include reported weakness
and giving-way, swelling, and stiffness with no appreciable
recurrent subluxation or lateral instability.
3. Arthritis of the left knee is manifested by pain and
minimal limitation of flexion.
CONCLUSIONS OF LAW
1. A right knee disability was not caused or aggravated by
the veteran's service-connected left knee disabilities. 38
U.S.C.A. § 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2008);
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2008).
2. The criteria for a rating in excess of 10 percent for
residuals of a left knee injury have not been met. 38
U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2008);
38 C.F.R. §§ 3.159, 4.40, 4.45, 4.71a, Diagnostic Code 5256
(2008).
3. The criteria for an initial rating in excess of 10
percent for left knee arthritis have not been met. 38
U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159,
4.40, 4.45, 4.71a, Diagnostic Code 5260, 5261 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A and the
pertinent implementing regulation, codified at 38 C.F.R. §
3.159, provide that VA will assist a claimant in obtaining
evidence necessary to substantiate a claim but is not
required to provide assistance to a claimant if there is no
reasonable possibility that such assistance would aid in
substantiating the claim. They also require VA to notify the
claimant and the claimant's representative, if any, of any
information, and any medical or lay evidence, not previously
provided to the Secretary that is necessary to substantiate
the claim. As part of the notice, VA must request that the
claimant provide any evidence in the claimant's possession
that pertains to the claim.
The Board also notes that the United States Court of Appeals
for Veterans Claims (Court) has held that the plain language
of 38 U.S.C.A. § 5103(a) requires that notice to a claimant
pursuant to the VCAA be provided "at the time" that, or
"immediately after," VA receives a complete or substantially
complete application for VA-administered benefits. Pelegrini
v. Principi, 18 Vet. App. 112, 119 (2004). The Court further
held that VA failed to demonstrate that, "lack of such a
pre-AOJ-decision notice was not prejudicial to the appellant,
see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans
Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat.
2820, 2832) (providing that "[i]n making the determinations
under [section 7261(a)], the Court shall . . . take due
account of the rule of prejudicial error")."
The timing requirement enunciated in Pelegrini applies
equally to the initial-disability-rating and effective-date
elements of a service-connection claim. Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
The record reflects that the veteran was provided the
required notice by correspondence dated in August 2004. VA
did fail to fully comply with the provisions of 38 U.S.C.A. §
5103 prior to the rating decision in question for the right
knee claim on appeal. Specifically, VA did not inform the
veteran of how disability evaluations and effective dates are
assigned until correspondence dated in March 2006. The
record, however, shows that any prejudice that failure caused
was harmless, as the Board concludes below that the
preponderance of the evidence is against the veteran's
claims, and thus any questions as to the appropriate
disability rating or effective date to be assigned are
rendered moot.
Regarding proper notice for the veteran's claim for an
increased rating for left knee arthritis, as service
connection, an initial rating, and an effective date have
been assigned, the notice requirements of 38 U.S.C.A. §
5103(a), have been met. Hartman v. Nicholson, 483 F. 3d 1311
(Fed Cir. 2007).
The record also reflects that the veteran's service medical
records and pertinent post-service treatment records have
been obtained. Neither the veteran nor his representative
has identified any outstanding evidence that could be
obtained to substantiate his claims. The Board is also
unaware of any such evidence.
There is not a scintilla of evidence that any VA error in
notifying or assisting the appellant reasonably affects the
fairness of this adjudication. Accordingly, the Board will
address the merits of the veteran's claims.
Analysis
The Board has reviewed all the evidence in the veteran's
claims file, which includes his written contentions, service
treatment records, and VA medical records. Although this
Board has an obligation to provide adequate reasons and bases
supporting this decision, there is no requirement that the
evidence submitted by the veteran or obtained on his behalf
be discussed in detail. Rather, the Board's analysis below
will focus specifically on what evidence is needed to
substantiate each claim and what the evidence in the claim
file shows, or fails to show, with respect to each claim.
See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir.
2000).
Right knee disability
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).
Service connection requires a finding of the existence of a
current disability and a determination of a relationship
between that disability and an injury or disease incurred in
service. Watson v. Brown, 4 Vet. App. 309, 314 (1993).
A disability is also service connected if it is proximately
due to or the result of a service-connected disease or
injury. 38 C.F.R. § 3.310(a). Secondary service connection
may also be established when there is aggravation of a
veteran's non-service-connected disease or injury that is
proximately due to or the result of a service-connected
disease or injury, and not due to the natural progress of the
nonservice-connected disease. 38 C.F.R. § 3.310(b); Allen v.
Brown, 7 Vet. App. 439, 448 (1995).
Where the determinative issue involves medical causation or a
medical diagnosis, there must be competent medical evidence
to the effect that the claim is plausible; lay assertions of
medical status do not constitute competent medical evidence.
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992).
After a careful review of the evidence of record, the Board
finds that entitlement to service connection for a right knee
disability is not warranted. The veteran has been diagnosed
with degenerative joint disease in both knees. See August
2008 VA examination. The Board finds this qualifies as a
current disability. The Board also finds, however, that the
veteran does not have a competent nexus opinion linking his
right knee disability with his left knee disabilities. In
August 2008, the veteran was afforded a VA examination in
response to his claim. An MRI of each knee was ordered, and
the examiner commented that he could not provide an opinion
without reviewing the MRI results. The record contains a
handwritten note by the examiner after an examination of the
MRI studies. He opined, "MRI studies of both knees reveal
term medial menisci bilaterally as well as d[egenerative]
j[oint] d[isease]. These changes are symmetrical and
apparently systemic with the degenerative changes in the
r[igh]t knee not likely to have been caused by a 'bad' l[eft]
knee." He explained his reasoning by stating, "[t]he
equivalent bilateral knee pathology reflects the effects of
exogenous obesity, life-style, aging and hereditary pre-
disposition. In the left knee Vietnam trauma probably
initiated the deterioration."
The record does not contain any other competent nexus opinion
relating to the veteran's right knee disability, and more
significantly, does not contain a competent nexus opinion
specifically tying the veteran's right knee disability to his
service-connected left knee disabilities. Without such an
opinion, the veteran's claim is denied.
Left knee disabilities
Disability ratings are determined by applying the criteria
set forth in the VA's Schedule for Rating Disabilities
(Rating Schedule). Ratings are based on the average
impairment of earning capacity. Individual disabilities are
assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38
C.F.R. § 4.1 (2007). Where entitlement to compensation has
already been established and an increase in the disability
rating is at issue, it is the present level of disability
that is of primary concern. Francisco v. Brown, 7 Vet. App.
55, 58 (1994). Multiple (staged) ratings may be assigned for
different periods of time during the pendency of the appeal.
Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings
are appropriate in any increased-rating claim in which
distinct time periods with different ratable symptoms can be
identified. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).
The analysis in this decision is therefore undertaken with
consideration of the possibility that different ratings may
be warranted for different time periods.
Where there is a question as to which of the two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
Disability of the musculoskeletal system is primarily the
inability, due to damage or inflammation in parts of the
system, to perform normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. The functional loss may be due to absence of part
or all of the necessary bones, joints and muscles, or
associated structures, or to deformity, adhesions, defective
innervation, or other pathology, or may be due to pain,
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. Rating
factors for a disability of the musculoskeletal system
included functional loss due to pain supported by adequate
pathology and evidenced by visible behavior of the claimant
undertaking the motion, weakened movement, excess
fatigability, swelling and pain on movement. 38 C.F.R. §§
4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).
Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, a 10 percent
rating is warranted for slight recurrent subluxation or
lateral instability. A 20 percent rating is warranted for
moderate recurrent subluxation or lateral instability.
Under Diagnostic Code 5260, a 10 percent rating is warranted
for limitation of flexion of the leg to 45 degrees, and a 20
percent rating is warranted for limitation of flexion to 30
degrees. Under Diagnostic Code 5261, a 10 percent rating is
warranted for limitation of extension of the leg to 10
degrees, and a 20 percent rating is warranted for limitation
of extension to 15 degrees.
Normal range of motion of a knee is from zero degrees of
extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate
II.
The Board finds that the veteran's left knee disabilities do
not warrant a higher rating. The record shows that in March
2003, the veteran presented to the outpatient clinic with
pain in his left knee. The veteran was prescribed a cane for
supported ambulation. He reported that knee pain had caused
significant decrease in mobility and some difficulty with
sleep. A physical examination showed no swelling of the
bilateral knees and full range of motion, but with pain.
In December 2004, the veteran was afforded a VA examination
in response to his claim for an increased rating of residuals
of a left knee injury. A range of motion test revealed
extension of negative 10 degrees. Flexion was to 120
degrees. A physical examination showed some mild degree of
instability on the medial lateral ligamentus of the left
knee. There was no lateral collateral instability, and there
were no anterior cruciate ligament or posterior cruciate
ligament instabilities. The patella femoral joint was smooth
and without crepitus. Active motion exercise did not change
the range of motion; however, the veteran did have some
subjective complaints of pain during exercises. The
physician diagnosed degenerative arthritis of the left knee,
and opined that it is more likely than not that the patient
suffered an increase in his pain and disability as evidence
by the range of motion changes. In response to these
findings, the RO granted entitlement to service connection
for left knee arthritis and assigned a separate rating of 10
percent.
In August 2008, the veteran reported for another VA
examination for both left knee disabilities. The veteran
reported localized pain under the kneecap bilaterally and
weakness with the knees occasionally giving-way, the left
more than the right. The veteran also complained of
bilateral swelling and stiffness. He did not use a brace,
crutches, or walker. A cane was used for ambulation. A
range of motion examination revealed that in the sitting
position, the veteran's legs could not be brought parallel
actively to the floor with each side lacking 20 degrees to
full extension, however, a full examination bilaterally
revealed normal range of motion-from zero to 140 degrees.
Evaluation of the knees showed no effusion on either side.
The ligaments bilaterally were reported as "stable." The
veteran was diagnosed with bilateral degenerative joint
disease.
Regarding the veteran's claim for a rating in excess of 10
percent for residuals of a left knee injury, the Board finds
an increased rating is not warranted because the veteran's
left knee is more adequately defined by slight recurrent
subluxation or lateral instability, and not marked by
moderate recurrent subluxation or lateral instability. See
December 2004 VA examination (finding mild degree of
instability on the medial lateral ligamentus of the left knee
and no collateral instability and no anterior cruciate
ligament or posterior cruciate ligament instabilities).
Although the veteran reported his knees giving-way at his
August 2008 VA examination, the examining physician found the
"ligaments bilaterally are stable." See 2008 August VA
examination. The Board has given consideration to the
veteran's own statements, however, medical evidence is
required to establish a medical diagnosis; lay assertions of
medical status do not constitute competent medical evidence
for this purpose. Espiritu v. Derwinski, 2 Vet. App. 492,
494 (1992). While the veteran reported increased
instability, physical examinations show that his instability
still falls within the "slight" range. Therefore, a rating
in excess of 10 percent for residuals of a left knee injury
is not warranted.
The Board also finds that the preponderance of the evidence
is also against the veteran's claim of an inital rating in
excess of 10 percent for left knee arthritis. In March 2003
and August 2008, the veteran had normal flexion. At the
December 2004 VA examination, the veteran had decreased
flexion, limited to 120 degrees. This finding still falls
within the normal range, as defined by the Diagnostic Code.
See 38 C.F.R. § 4.71a, Diagnostic Code 5260 (compensable
rating beginning at limitation of flexion at 45 degrees).
Regarding extension, the veteran's range of motion findings
were slightly mixed. In March 2003 and April 2004
examinations, the veteran showed normal and better than
normal extension, respectively. In December 2008, the
physician noted that while in the sitting position, the
veteran could not bring his legs parallel actively to the
floor with each side lacking 20 degrees to full extension.
Upon conducting a full range of motion examination
bilaterally, the physician reported a normal range of
motion-from zero to 140 degrees. Although the veteran
reported pain on movement, the pain did not restrict the
veteran's range of motion, and other DeLuca factors, such as
weakened movement, excess fatigability, or swelling, were not
present at any examinations. See 38 C.F.R. §§ 4.40, 4.45;
DeLuca, 8 Vet. App. 202.
When there is an approximate balance in the evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need
only demonstrate that there is an approximate balance of
positive and negative evidence in order to prevail. Gilbert
v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore,
reasonable doubt is afforded to the veteran only when there
is a near balance of positive and negative evidence. The
Board finds that there is not a balance of positive and
negative evidence here. The August 2008 VA examination
reported contradicting findings of range of motion. If the
Board disregards these findings due to this contradiction,
the record still contains normal and better than normal
findings for left knee extension. There are no other
findings of limited extension contained in the record. Thus,
the Board finds that the preponderance of evidence is against
an initial rating in excess of 10 percent for left knee
arthritis.
Ratings shall be based as far as practicable, upon the
average impairments of earning capacity with the additional
proviso that the Secretary shall from time to time readjust
this schedule of ratings in accordance with experience. To
accord justice, therefore, to the exceptional case where the
schedular evaluations are found to be inadequate, the Under
Secretary for benefits or the Director, Compensation and
Pension Service, upon field station submission, is authorized
to approve on the basis of the criteria set forth in 38
C.F.R. § 3.321 (2008) an extra-schedular evaluation
commensurate with the average earning capacity impairment due
exclusively to the service-connected disability or
disabilities. The governing norm in these exceptional cases
is a finding that the case presents such an exceptional or
unusual disability picture with such related factors as
marked interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards. 38 C.F.R. §§ 3.321(b). The
record does not show these factors are present; therefore,
extraschedular consideration is not applicable.
ORDER
Entitlement to service connection for a right knee disorder,
secondary to service-connected left knee disabilities, is
denied.
Entitlement to a rating in excess of 10 percent for residuals
of a left knee injury is denied.
Entitlement to an initial rating in excess of 10 percent for
left knee arthritis is denied.
____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs